The bedroom tax and the test of unreasonableness

There is another report of a tribunal deciding that the bedroom tax should not apply if the bedroom is not usable, or if it is too small.

The traditional principle in administrative law is that the courts can only intervene if a decision is very unreasonable – so unreasonable that a decision maker could not have made it. This is referred to as “Wednesbury unreasonableness”, in Lord Diplock’s words “a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it.” When I first made the argument for applying the statutory standard to room size, I thought the basic case looked like this: landlords have a reasonable discretion, and no-one can complain that applying a statutory standard isn’t minimally reasonable, so if the landlord can be persuaded to reclassify rooms, their decision can’t really be challenged.

The tribunals, however, are going much further than that. For an explanation, I’m indebted to another blog, Public law for everyone, which drew my attention to a speech by Lord Carnwath. Carnwath makes it clear that the courts have left the Wednesbury principle behind.

In 19 years as a judge of administrative law cases I cannot remember ever deciding a case by simply asking myself whether an administrative decision was “beyond the range of reasonable responses” … My approach I suspect has been much closer to the characteristically pragmatic approach suggested by Lord Donaldson …”the ultimate question would, as always, be whether something had gone wrong of a nature and degree which required the intervention of the court and, if so, what form that intervention should take”. If the answer appears to be yes, then one looks for a legal hook to hang it on. And if there is none suitable, one may need to adapt one.

The position taken in tribunals so far seems to be simple enough: where there are bad decisions, they will change them. The primary test, Lord Carnwath says, is whether or not a decision is unfair. In the case of the bedroom tax, too many decisions are.